Congress's international legal discourse.

Author:Cope, Kevin L.
Position:IV. Evidence of International Legal Discourse in Congress through Conclusion, with footnotes, p. 1153-1174

    This Article thus presents three conjectures for whether and why Congress purports to value international law in the course of its domestic lawmaking. As mentioned above, these accounts in turn generate somewhat different predictions regarding the quantity, quality, attitudes, and rhetorical form of Congress's international legal discourse; the rest of this Article tests these predictions and examines the results.

    1. Defining the Database and Data Collection

      To test the hypotheses, I developed an original dataset comprising international law arguments in the legislative history of key statutes enacted between 1980 and 2010, inclusive. For this group of statutes, the study includes only arguments about binding international law--specifically, treaty or customary international law. That is, it is concerned only with norms that impose formal legal constraints on the United States. That definition excludes, for instance, foreign law or norms or international policy considerations that do not impose any formal legal requirements. With these standards in mind, I developed a set of specific criteria for selecting statutes for this internationally problematic group. Bills were included if and only if they met all four criteria: they (1) were enacted; (2) between 1980 and 2010; (185) (3) lacked a necessary nexus with international law; and (4) created some facially demonstrable conflict with an international law norm binding on the United States. (186) The first two criteria are straightforward. The third criterion, i.e., lacking a necessary nexus with international law, operated to exclude two of the three types of congressional international law interactions (creation and domestication) described in Section I.C.2 above. As to the fourth criterion, those statutes were excluded if the tension between the two sources of law was not facial, that is, where the conflict was dependent on an unusual or unforeseeable application of the statute.

      Of course, applying this criterion necessarily involved some degree of judgment. My research relied primarily on three methods of identifying pertinent statutes. First, I identified case law where the court discussed an apparent tension between a federal statute and international law, often in the context of a Charming Betsy analysis. Second, I sent surveys to dozens of legal scholars across a range of legal fields asking them to identify, based on postenactment reaction from jurists and scholars, federal statutes that arguably conflicted with international law. Third, I searched for law review articles arguing that a particular federal statute violated international law.

      Though I attempted to identify the entire universe of such statutes, certain other statutes arguably might have been included. (187) Nonetheless, the statutes cover a wide range of time and subject matters, suggesting a highly representative sample. Twelve statutes with international law implications were identified (see Table 1). They include the following: Marijuana on the High Seas Act, (188) Tax Reform Act of 1986, (189) Anti-Terrorism Act of 1987, (190) Iran and Libya Sanctions Act of 1996, (191) Illegal Immigration Reform and Immigrant Responsibility Act, (192) Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Helms-Burton Act), (193) Fairness in Music Licensing Act of 1998, (194) Authorization for Use of Military Force Against Iraq Resolution of 2002, (195) REAL ID Act of 2005, (196) Detainee Treatment Act of 2005 (Graham-Levin Amendment), (197) Merchant Marine Laws Codification (Maritime Drug Law Enforcement Act), (198) and Military Commissions Act of 2006. (199)

      To put the international law argument observations in context, I sought to compare them with a control group implicating another norm that shares some attributes with international law. Because constitutional law is the only other higher norm, constitutionally suspect statutes served as the most fitting comparison. To identify the set of constitutionally problematic statutes, I identified laws that posed constitutional problems, but which Congress had enacted nonetheless. I started by identifying every act of Congress enacted during the selected period that had been declared unconstitutional, in whole or in part, by the Supreme Court. From that group, I chose those acts that followed most closely in public-law number to the existing set of international law statutes (see Table 2). In this way, I sought to "match" the international law statutes with constitutional ones as closely as possible, thereby minimizing confounding factors such as changes in Congress's composition and institutional changes in structure or procedure. (200) Tables 1 and 2 illustrate the two subsets, respectively: one group of twelve statutes that were later thought to create tension with an international law norm; and one control group of eleven statutes (201) (two of which are also in the first group) that were later determined to be unconstitutional. (202) Each of the studied statutes thus falls into one or both of two groups: "internationally problematic" or "constitutionally problematic."

      Having identified the set of pertinent statutes, I reviewed the legislative history of each statute, which I obtained from ProQuest Legislative Insight's near-comprehensive database of published recent congressional legislative history. (203) The goal of this review was to identify international law and constitutional law arguments, which, for these purposes, means clusters of statements by a member of Congress (sometimes, as part of a dialogue with one or more other members or witnesses), that make some point about the relevance of a given international or constitutional law norm to the bill under consideration. (204)

      For each statute, the legislative history studied entails all available published texts of three sets of proceedings: the congressional record (comprising transcripts of floor debates), committee reports, and committee hearing transcripts. Importantly, the first two sets of documents, congressional record and committee reports, contain statements exclusively by members of Congress, speaking individually or as part of a committee majority or minority. (205) Though committee hearing transcripts contain statements by both members of Congress and hearing witnesses, (206) only statements from members of Congress were included in the analysis. The complete set of records comprises nearly 700 documents, averaging approximately 150 pages in length, for a total of over 100,000 pages of legislative history. To identify relevant arguments, a combination of electronic and manual techniques was used to search each legislative history document, identifying any mention of the potentially conflicting higher norm, as well as other terms and phrases suggesting a concern with higher norms. (207)

    2. Analytical Methods

      After identifying pertinent arguments about international or constitutional law, numerous aspects of every argument were analyzed and coded. All argument data were aggregated by statute, allowing for characterizations about the nature of Congress's consideration of international or constitutional law for each statute. The references were also coded and aggregated by category of higher norm, allowing for broad comparisons between international law rhetoric and constitutional rhetoric.

      In total, fifty-one attributes of each argument were recorded and analyzed. Those references include the following information: the name, title, and party of the speaker(s); the legislative context (committee hearing, floor debate, committee report); the length and depth of the argument; and the form of argument. Most notably, each reference was coded for its attitude toward international or constitutional law and toward the bill (or amendment to the bill) under consideration. That is, arguments were characterized as either supportive of international/constitutional law or adverse to/neutral toward it. They were also classified as either "pro-bill" or "anti-bill." All arguments were also classified as one of three forms of argument: legalism, pragmatism, and formal sanction concerns. In other words, speakers argued that the statute should be defeated or modified to avoid violating international or constitutional law due to: (a) legalism, or law abidance for law abidance's sake; (b) pragmatic reasons such as: threats to the safety, security, liberty, or economic interests of Americans or allies; the possibility of triggering reciprocal violations; or concerns about undermining relationships with U.S. partners and allies; and (c) the threat of a judicial or other institution nullifying the law or sanctioning the government. Some arguments fell into more than one argument form category. These categories and the prevalence of each are shown in Table 3 and illustrated in Figures 1-3 in Section IV.C below.

      It may be helpful to provide some examples of arguments within each argument form category. First, congressional speakers sometimes cite the higher-order principle itself as a basis for rejecting a bill without specifying any pragmatic or concrete policy, political, or other justification. For example, in the 1996 debates over the Helms-Burton Act (which extended sanctions to non-U.S. entities doing business with Cuba), some speakers cited the customary international law norm that forbids states, except in certain limited circumstances, from regulating conduct by nonnationals outside their own territories. (208) On the House floor, Republican Congressman Campbell argued against the Act as presented based on CIL. A central theme of the argument is legalist. "[W]hat we have is a direct affront to rules of international law on jurisdiction.... [T]here is no precedent for extending American law to investments made in another country pursuant to laws of that country." (209)

      Appeals to legalism could also occur in constitutional...

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